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Medicaid Crisis

Medicaid “Crisis” Planning

Medicaid “Crisis” Planning

Medicaid “Crisis” Planning is defined as when an individual is already in a skilled nursing facility or will be entering within a short time-period and needs to qualify for Medicaid benefits immediately. This event may also involve failing to qualify for Medicaid benefits because of either too much income or too many assets, or both.

In the case of a married couple, an applicant may be able to also increase the well spouse’s Community Spouse Resource Allowance or redirect some of the nursing home spouse’s income away from nursing home costs, and back towards the well spouse, using the Minimum Monthly Maintenance Income Allowance.

A large percentage of Florida seniors will require long-term care at some point in their lives.  To be able to pay the enormous expense, most will need to rely on Medicaid for help. Unfortunately, many residents in this state did not take prior steps to ensure they will qualify for the program. In such cases, there are some Medicaid “Crisis” solutions that can be used even at the last minute to help seniors become eligible.

Nursing homes in Florida can cost up to $10,000 per month or more. And typically, Medicare will not pay for it. For most families, this means they need to either qualify for Medicaid or try to come up with the money out of their own pocket


Medicaid Crisis Planning Strategies

When a senior has an immediate need for long-term care, the government does not intend for you to transfer your assets one day, enter the nursing home the next day, and apply for Medicaid benefits the following day. Therefore, there is a five-year “look back” period for most asset transfers. If you transfer assets within the “look back” period, you are subject to a penalty.

Fortunately, there are certain types of asset transfers that are exempt from the “look back” period, and thus can be employed as last-minute solutions to qualify for Medicaid. These include assets transferred to:

  • Your spouse (or another person if it is for your spouse’s benefit)
  • A child who is blind or disabled
  • A trust for the benefit of a child who is blind or disabled
  • A trust for the sole benefit of someone who is disabled and under age 65

If the asset you are transferring is your home, there are a few added exemptions in addition to those mentioned above, including transfers to:

  • A child who is under age 21
  • A sibling who has equity in the home and has lived in it at least a year prior to the applicant entering a nursing facility
  • A child who lived in the home at least two years prior to the applicant entering a nursing facility, and who provided care that helped keep the applicant living at home

If any of these situations apply to you, it may be possible to transfer your assets and qualify for Medicaid without penalty.

Qualified Income Trusts

Also known as a Florida Medicaid trust, Miller trust, or d4B trust, a qualified income trust is an irrevocable living trust that is set up to divert excess income and allow the creator to qualify for Medicaid. While the Medicaid recipient is alive, assets in the trust can be accumulated, invested, or spent.

Upon death, any remaining assets in the trust must be paid back to the state up to the total amount the state paid the recipient for long-term care (minus applicable taxes and trust administration fees). While this is a less than ideal scenario, a qualified income trust can help you qualify for Medicaid while giving you control of your assets while you are alive.

Other strategies that can be taken last-minute to help qualify for Medicaid include:

  • “Spend downs” of excess countable assets into exempt assets such as home improvements and automobiles
  • Medicaid pooled trusts in which excess funds are put into a group trust with leftover funds remaining in the trust after you die and being used to help others in the pool
  • Medicaid-compliant annuities that irrevocably convert countable assets into an income stream

There are several other strategies that may be available depending on your situation. A qualified Elder Law Attorney can fully review your needs to determine the best solutions for your specific circumstance.

Read more related articles at:

Florida Medicaid (SMMC-LTC) Income & Assets Limits for Nursing Homes & Long Term Care

Medicaid Eligibility Test / Pre-Screen for Long Term Care

Also, read one of our previous Blogs at:


Click here to check out our On Demand Video about Estate Planning.




LTC Insurance

Pros and Cons of Long-Term Care Insurance

Pros and Cons of Long-Term Care Insurance


Pros and Cons of Long-Term Care Insurance. Is long-term care insurance a wise purchase? Here are five questions you can ask to see whether this type of insurance will benefit you.

Key Takeaways

  • Knowing the pros and cons of long-term care insurance will help you decide whether it’s a wise purchase for you and your situation.
  • Consider factors such as your lifestyle, your family health history, and what kind of care you might need in the future.
  • Think about whether you would be able to afford to pay for your long-term care in the future, or if you’d likely need the safety net of insurance.


Do You Lead a Healthy Lifestyle?

Believe it or not, being healthy may mean that you are more likely to need care. The healthiest people are often the ones who end up needing long-term care assistance later in life, whereas heart problems or cancer may take the unhealthy ones sooner. One of the benefits of long term care insurance , if you are a healthy person, is that it can allow you to stay in your home and maintain your independence longer. Most policies issued today cover the cost of in-home care, which can provide someone to help with many of the activities of daily living, such as cooking and cleaning. Usually, you must require assistance with two out of the six activities of daily living for your long-term care benefits to begin.


What Shows up in Your Family Health History?

What have longevity and health been like for your grandparents, parents, aunts, uncles, and siblings? Has anyone needed care later in life? Who was there to assist them? What if they had needed care? How would it have affected the family? Today, many families are scattered across the country, making it difficult to rely on relatives for care. It can also be physically demanding to care for someone, and your family members might not be capable of providing the help needed. Long-term care insurance helps reduce the burden of care that may otherwise fall on loved ones.


What Kind of Care Might You Need?

What if you break a hip later in life? What if your mind remains fully alert, but you need help cooking, cleaning, and dressing, and you do not want to move in with a family member? Who would help, and how would you pay for their help? Full-time, long-term care assistance can run from $6,000 to $10,000 per month, or even more if medical care is needed. If you have sufficient assets to cover these costs then you do not need long-term care insurance. If you do not have sufficient assets, without long-term care insurance, you will end up spending down the funds you have before you see whether you qualify for Medicaid. Long-term care insurance buys you time and enables you to afford quality care.


Can You Afford It, or Can You Afford Not to Have It? 

Long-term care insurance has adjustable features. Like buying a car, you can get all the extras, and pay for them, or you can buy a base model that costs less but still provides decent transportation. The major downside of long-term care insurance is the same as with any insurance: you may pay premiums for years and never use the coverage. According to the American Association for Long Term Care Insurance, the average annual premium for a long-term care policy for a 65-year-old male, in reasonably good health, runs about $1,400. That figure is based on a policy that provides a pool of benefits equal to $162,000. Depending on the level of care you require, and the state in which you live, the average cost of a stay in a long-term facility can exceed $10,000 per month, which means that the benefits from such a policy could run out in a little more than a year. You need to look at it the same way you look at any other type of insurance. After paying for homeowner’s insurance for years, are you upset that your home never burned down and that you never used your insurance? Of course not! You are happy that you never experienced such an awful event. When it comes to the amount of coverage, you may not need a “Cadillac” policy. Instead, evaluate the amount of long-term care coverage you may need by considering your other sources of income. A policy that covers $100 per day, with an inflation rider, may be sufficient once you also factor in your Social Security and pension income. If you have little income and not much in savings, you will likely need to rely on Medicaid should you need care during your retirement years. If you have a nice pension and $2 million or more saved, you may feel comfortable being self-insured, which means that you would pay out-of-pocket for care needs. If your financials are in the middle of these two scenarios, having essential coverage for a reasonable premium could be a life-saver in your later years.


What Are the Odds?

According to the American Association for Long-Term Care Insurance: “The lifetime probability of becoming disabled in at least two activities of daily living or of being cognitively impaired is 68% for people age 65 and older.” It is wise to look at the statistics, but your personal odds are either zero or 100%. You either will need care or you will not. If you need care for more than four or five months, you will be glad you have long-term care insurance.



Long -term care insurance allows you to maintain your independence and afford quality care, and it also helps you reduce the financial and psychological stress that a long-term care event can impose on your family. The cons are the cost of the premiums. Whether you buy insurance or not, you will want to have a plan in place so that you and your family will know what to do if you need care. That plan involves talking to family and friends about their ability to help, if and when help is needed. You may also want to consider alternatives to long-term care insurance, such as making arrangements to live with family or friends or moving into a continuing care community.

Read more related articles at:

Long-Term Care Insurance – To Buy or Not to Buy?

How Hybrid Life Insurance Pays For Long-Term Care

Also, read one of our previous Blogs at:

What’s the Latest Trend in Long-Term Care Insurance?

Click here to check out our On Demand Video about Estate Planning.



What Are My Rights As a Power of Attorney.

Power of Attorney

The person named in a power of attorney to act on your behalf is commonly referred to as your “agent” or “attorney-in-fact.” With a valid power of attorney, your agent can take any action permitted in the document. Often your agent must present the actual document to invoke the power. For example, if another person is acting on your behalf to sell an automobile, the motor vehicles department generally will require that the power of attorney be presented before your agent’s authority to sign the title will be honored. Similarly, an agent who signs documents to buy or sell real property on your behalf must present the power of attorney to the title company. Similarly, the agent has to present the power of attorney to a broker or banker to effect the sale of securities or opening and closing bank accounts. However, your agent generally should not need to present the power of attorney when signing checks for you.Why would anyone give such sweeping authority to another person? One answer is convenience. If you are buying or selling assets and do not wish to appear in person to close the transaction, you may take advantage of a power of attorney. Another important reason to use power of attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary, for example, due to travel, accident, or illness, or it may be permanent.

If you do not have a power of attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you. People appointed in this manner are referred to as guardians, conservators, or committees, depending upon your local state law. If a court proceeding, sometimes known as intervention, is needed, you may not have the ability to choose the person who will act for you. Few people want to be subject to a public proceeding in this manner so being proactive to create the appropriate document to avoid this is important. A power of attorney allows you to choose who will act for you and defines his or her authority and its limits, if any. In some instances, greater security against having a guardianship imposed on you may be achieved by you also creating a revocable living trust.

Who Should Be Your Agent?

You may wish to choose a family member to act on your behalf. Many people name their spouses or one or more children. In naming more than one person to act as agent at the same time, be alert to the possibility that all may not be available to act when needed, or they may not agree. The designation of co-agents should indicate whether you wish to have the majority act in the absence of full availability and agreement. Regardless of whether you name co-agents, you should always name one or more successor agents to address the possibility that the person you name as agent may be unavailable or unable to act when the time comes.

There are no special qualifications necessary for someone to act as an attorney-in-fact except that the person must not be a minor or otherwise incapacitated. The best choice is someone you trust. Integrity, not financial acumen, is often the most important trait of a potential agent.

How The Agent Should Sign?

Assume Michael Douglas appoints his wife, Catherine Zeta-Jones, as his agent in a written power of attorney. Catherine, as agent, must sign as follows: Michael Douglas, by Catherine Zeta-Jones under POA or Catherine Zeta-Jones, attorney-in-fact for Michael Douglas.  If you are ever called upon to take action as someone’s agent, you should consult with an attorney about actions you can and cannot take and whether there are any precautionary steps you should take to minimize the likelihood of someone challenging your actions. This is especially important if you take actions that directly or indirectly benefit you personally.

What Kinds of Powers Should I Give My Agent?

In addition to managing your day-to-day financial affairs, your attorney-in-fact can take steps to implement your estate plan. Although an agent cannot revise your will on your behalf, some jurisdictions permit an attorney-in-fact to create or amend trusts for you during your lifetime, or to transfer your assets to trusts you created. Even without amending your will or creating trusts, an agent can affect the outcome of how your assets are distributed by changing the ownership (title) to assets. It is prudent to include in the power of attorney a clear statement of whether you wish your agent to have these powers.

Gifts are an important tool for many estate plans, and your attorney-in-fact can make gifts on your behalf, subject to guidelines that you set forth in your power of attorney. For example, you may wish to permit your attorney-in-fact to make “annual exclusion” gifts (up to $14,000 in value per recipient per year in 2013) on your behalf to your children and grandchildren. It is important that the lawyer who prepares your power of attorney draft the document in a way that does not expose your attorney-in-fact to unintended estate tax consequences. While some states permit attorneys-in-fact to make gifts as a matter of statute, others require explicit authorization in the power of attorney. If you have older documents you should review them with your attorney. Because of the high estate tax exemption ($5 million inflation adjusted) many people who had given agents the right to make gifts may no longer wish to include this power. Others, however, in order to empower their agent to minimize state estate tax might continue or add such a power. Finally, there may be reasons not to limit the gifts your attorney-in-fact may make to annual exclusion gifts in order to facilitate Medicaid planning or to minimize or avoid state estate tax beyond what annual exclusion gifts alone might permit.

In addition to the power of your agent to make gifts on your behalf, many powers of your attorney-in-fact are governed by state law. Generally, the law of the state in which you reside at the time you sign a power of attorney will govern the powers and actions of your agent under that document. If you own real estate, such as a vacation home, or valuable personal property, such as collectibles, in a second state, you should check with an attorney to make sure that your power of attorney properly covers such property.

What if I move?

Generally, a power of attorney that is valid when you sign it will remain valid even if you change your state of residence. Although it should not be necessary to sign a new power of attorney merely because you have moved to a new state, it is a good idea to take the opportunity to update your power of attorney. The update ideally should be part of a review and update of your overall estate plan to be sure that nuances of the new state law (and any other changes in circumstances that have occurred since your existing documents were signed) are addressed.

Will my Power of Attorney expire?

Some states used to require the renewal of a power of attorney for continuing validity. Today, most states permit a “durable” power of attorney that remains valid once signed until you die or revoke the document. You should periodically meet with your lawyer, however, to revisit your power of attorney and consider whether your choice of agent still meets your needs and learn whether developments in state law affect your power of attorney. Some powers of attorney expressly include termination dates to minimize the risk of former friends or spouses continuing to serve as agents. It is vital that you review the continued effectiveness of your documents periodically.

Read more related articles at:

Things You Can and Can’t Do With Power of Attorney

When POA Isn’t Enough: Authorizations Needed to Act on a Loved One’s Behalf

Also, read one of our previous Blogs at:

Different Types of Power of Attorney (and Who Needs Them)

Click here to check out our On Demand Video about Estate Planning.

IRS dirty dozen

IRS’ “Dirty Dozen”

IRS’ “Dirty Dozen”

By Jill Roamer, J.D., CIPP/US topicIcon Elder Law

Each year, the Internal Revenue Service (IRS) puts out their “dirty dozen” list. This is a list of scams that are prevalent that the IRS wants everyone to watch out for. Let’s see what’s going on in scammer-town this year.

The scams fall into four main categories: pandemic-related scams; scams relating to personal information; schemes focusing on certain victims; and scams that persuade taxpayers into taking crooked actions.

Pandemic Scams

Due to the pandemic, the government passed legislation that provided financial help to individuals and businesses. A scam can focus on stealing these payments. The IRS alerts taxpayers to watch out for mailbox theft of stimulus checks. The IRS reiterates that an IRS employee will not initiate contact via phone, email, or text asking for your social security number or other information in order to process stimulus checks.

Scammers have stolen identities and filed unemployment claims, the IRS says. These scammers have benefited from the bolstered unemployment benefits but the legitimate taxpayer is the one who may receive a Form 1099-G to report on their income tax return. If you received this form and you didn’t actually receive those unemployment benefits, you should contact the appropriate state agency for a corrected form.

Scams Related to Personal Information

Personal information (PI) is information that is used to identify you and thus could lead to a scammer impersonating you. PI includes your social security number, driver’s license number, banking information, passwords, and more.

The first scam related to PI that the IRS warns against is phishing. This involves the scammer sending you a communication that looks like it is from a legitimate source, like a government agency. You think you are dealing with the IRS but you are instead dealing with a ne’er-do-well. The scammer collects your PI and then is able to perpetrate fraud on your accounts. Or the scammer has a virus embedded in the communication that compromises the security of your computer or phone.

There are also scams related to social media. The scammer may open a social media account and pretend to be friend or family member in order to extract PI from you. Or the con artist could ask you for money due to an “emergency” or for a fake charity contribution.

Schemes Focusing on Certain Victims

With the pandemic, fraudsters have set up fake charities or disaster relief companies. Or they create bogus stories on social media about a fake family that has had it particularly rough due to COVID-19. These stories or charities pull at your heart strings. Before you give to a cause, do your research to make sure it is legitimate, and your funds will be used as you intend. Be wary of a charity asking for a donation via gift card or money wire.

Immigrants are the targets of some scammers. The con artist will impersonate a government employee and threaten deportation or jail if a sum is not paid. The IRS states that a legitimate IRS agent will not make these threats. Similarly, those with limited English-speaking capability are susceptible to phone scams. The Schedule LEP let’s a taxpayer request a change in their language preference so that they can more easily understand official IRS communications.

Scams that Persuade Taxpayers into Taking Crooked Actions

Scammers may offer big discounts for a “settlement” with the IRS, or say that they will file for certain relief programs, such as an Offer in Compromise. While relief programs do exist with the IRS and can prove very helpful for some taxpayers with IRS debt, you need to make sure you are dealing with a reputable company who will actually do legitimate work on your behalf. Look out for misleading advertising or deals that seem too good to be trust. It might be worth contacting the IRS yourself first to see what options you have. There are many resources on the IRS’ website, including a questionnaire to see if you qualify for an Offer in Compromise. And, of course, the IRS offers its forms online.


Scammers are out there waiting to prey on the vulnerable and unsuspecting. The IRS warns to look out for any scam that requests payment via gift cards. Also, be aware that in most circumstances, the IRS will first communicate with you via mail. If the first contact is a phone call, be cautious. And the IRS will almost never send out communications to you via email.

As an elder law attorney, you work with the target age group for many of these scams. It’s important to keep your clients informed. If someone contacts your clients purporting to be from the IRS, they should call the IRS at 800-829-1040 to see what the facts are before proceeding.

Read more related articles at:

IRS wraps up its 2021 “Dirty Dozen” scams list with warning about promoted abusive arrangements

IRS urges caution with email, social media and phones as part of “Dirty Dozen” series

Also, read one of our previous Blogs at:

What are the Latest Senior Scams?

Click here to check out our On Demand Video about Estate Planning.


Incapacity Planning

How Can I Plan For Incapacity?

Legal Planning for Incapacity

How can I plan for incapacity? As you face aging and the need to make plans for your future, you face having to make legal decisions about many aspects of your lives. These legal decisions not only protect you from others doing things you might not like to you, they also protect family and loved ones by giving them guidance in the care that you would like to receive. After completing all the legal paperwork, the next step is to sit down and talk to family about the decisions you have made and why.

What Are the Legal Documents Everyone Should Have?

Advance Health Care Directive

  • Gives power to a person you designate to make health care decisions for you ONLY IF you can’t speak for yourself
  • Also called Living Will, Durable Power of Attorney for Healthcare
  • Each state has slightly different versions of the form, but a form from one state will be honored in another state
  • Hospitals and doctor’s offices have the forms
  • Everyone over 18 should have one
  • Must be completed while you are competent to know what you are signing, i.e. without dementia
  • Often used to decide on feeding tubes, ventilators, and other treatments at the end of life or when someone is unconscious
  • Only needs to be witnessed; does not need to be notarized

What happens if you don’t have an Advance Health Care Directive?

  • Doctors will do everything to treat your condition and keep you alive
  • Family will be asked what to do
  • If they don’t know what your wishes would be, there might be family conflict and guilt over making the wrong decision
  • Physician training, hospital, and nursing home policies often dictate the use of “heroic means” to sustain life. For example, “reviving” a very ill person after a stroke, and using a respirator for someone deemed medically “brain dead,” are standard procedures in many hospitals.


  • Stands for Physician’s Orders for Life Sustaining Treatment and replaces DNR—Do Not Resuscitate
  • Allows individuals with life-threatening illnesses to decide with their doctors what treatment they would or wouldn’t want. Since it is a physician’s order, it is not open to the will of others.
  • Is helpful if you do not want 911 Emergency Responders to perform CPR (Cardio-pulmonary resuscitation) and expands on other treatments you might or might not want

What happens if you don’t have a POLST?

  • If 911 is called, EMTs are required to do everything possible to resuscitate a person and keep him/her alive until they arrive at the hospital.


Says how you want your estate (money and belongings) to be dispersed to family, friends, organizations, etc. after you die.

  • Also called Last Will and Testament
  • Each state has different laws about estates, but most states will honor an out-state will
  • Can be hand written or completed using on line forms, but necessary to be witnessed and/or notarized
  • If estate is complicated or over $100,000, it is best to have an attorney help you write the will or review what you wrote
  • Must be completed while you are competent to know what you are signing, i.e. without dementia
  • In a will, you appoint someone to be the executor or administrator who will pay your final bills and see that your wishes are carried out
  • Probate is the transferring of property when someone dies. The probate court oversees the executor to assure that the estate is divided as stated in the will.

What happens if you don’t have a will?

  • If you die without a will, the court will probate your estate, i.e., decide how your estate should be distributed.

Durable Power of Attorney for Finance

Allows someone to access your finances, including checking account, investments, and property, in order to pay your bills.

  • A Durable Power of Attorney is valid even if you are incapacitated.
  • Must be completed while you are competent to know what you are signing, i.e. without dementia.
  • Needs to be someone you trust, as this person has a lot of control over your finances. If you don’t have someone you trust, you should consult a professional.
  • Spouses might not have access to all of your funds unless everything, including investments, is held as joint property.

What happens if you don’t have a Power of Attorney for Finance?

  • If you don’t have a durable power of attorney for finance and you can’t manage your finances, a judge will have to appoint someone to do so. It may mean you will have to be conserved, e.g. someone appointed by the court will oversee your care and finances.

Final Arrangements

  • Decide whether you would like cremation or burial and let the family know. Also let loved ones know about your wishes regarding organ donation and other special arrangements.
  • Put your wishes in writing in a place family members can find them.
  • The more decisions you make beforehand, the fewer decisions family has to make during a difficult time when they are grieving.

What happens if you don’t make your wishes known about final arrangements?

  • Family can often be in conflict about what you would have wanted.
  • The law can determine who has the power to make the decision if it is unclear or there is conflict.

What Are the Other Things You Might Need?


A trust creates a legal entity that holds your assets for you so that your estate does not have to go through probate when you die.

  • Also called a Living Trust
  • You name a trustee to oversee the trust both while you are alive, and to distribute the trust to beneficiaries when you die.
  • You may be the trustee of the trust while you are alive, in which case you name a successor trustee for the trust who will manage it after you die or become incapacitated.
  • A revocable trust allows you to control everything that happens in the trust while you are alive.
  • An irrevocable trust cannot be changed without the beneficiary’s consent.
  • There are many options for trusts for specific purposes, such as:
    • Special Needs Trusts: Puts money aside to help someone who is disabled
    • Charitable Trust: Money given to a charity
    • Bypass Trust: Irrevocable trust passes assets to the spouse and then the children at death of second parent, limiting estate taxes
    • Life Insurance Trust: Removes life insurance from estate and thus estate taxes
    • Generation Skipping Trust: Allows grandchildren to directly inherit without paying taxes

What happens if you don’t have a trust?

  • Depending on the value of your assets, your estate will go through probate, which can take several months and incur costs to the court.

Beneficiary Forms

Bank accounts, investments, insurance, and retirement plans can be designated as “payable on death” to a named beneficiary, which means the funds don’t have to go through probate.

  • Allows access to funds immediately, rather than waiting for probate to close

What happens if you don’t have fund “payable on death?”

  • Unless funds are in a trust, the estate must be probated through the court, which can take several months (when the funds might not be available) and incur costs to the court.

Where to Find My Important Papers

Have a central place to keep wills, trusts, powers of attorney, etc so that family members will know where to look for these documents.

What happens if you don’t have a central place?

  • Often, particularly in times of emergency and stress, we get confused and don’t know where something important might be. Having a place to go to will reduce the possibility of forms being misplaced or lost. The legal forms are necessary to assure that the care you or a loved one might want are carried out.


In a recent survey, 81% of the people said they think about these issues, however only 33% said they had completed the necessary forms. Although it is hard to talk about and think about, it is important to take care of these matters for your own sake and for the sake of your family.


Family Caregiver Alliance
National Center on Caregiving

(415) 434-3388 | (800) 445-8106
Website: www.caregiver.org
Email: [email protected]
FCA CareNav: https://fca.cacrc.org/login
Services by State: https://www.caregiver.org/connecting-caregivers/services-by-state/

Family Caregiver Alliance (FCA) seeks to improve the quality of life for caregivers through education, services, research and advocacy. Through its National Center on Caregiving, FCA offers information on current social, public policy and caregiving issues and provides assistance in the development of public and private programs for caregivers. For San Francisco Bay Area residents, FCA provides direct family support services for caregivers of those with Alzheimer’s disease, stroke, ALS, head injury, Parkinson’s disease, and other debilitating health conditions that strike adults.

Read more related articles at: 

Incapacity Planning

Creating a Caregiving Plan When You Have No One to Take Care of You

Also, read one of our previous Blogs at:

What Can I Do to Plan for Incapacity?

Click here to check out our On Demand Video about Estate Planning.

medicaid 5 year lookback


Understand Medicaid’s Look-Back Period; Penalties, Exceptions & State Variances
Last updated: January 07, 2021

Medicaid’s Look-Back Period Explained
When a senior is applying for long-term care Medicaid, whether that is for services in one’s home, an assisted living residence, or a nursing home, there is an asset (resource) limit. In order to be eligible for Medicaid, one cannot have assets greater than the limit. Medicaid’s look-back period is meant to prevent Medicaid applicants from giving away assets or selling them under fair market value in an attempt to meet Medicaid’s asset limit.

All asset transfers within the timeframe of the look-back period are reviewed, and if an applicant is found to have violated this rule, a penalty period (a period of Medicaid ineligibility) will be established. This is because had the assets not been gifted, sold under their fair market value, or transferred, they could have been used to pay for the elderly individual’s long-term care. If one gifts or transfers assets prior to this look-back period, there is no penalization.

The date of one’s Medicaid application is the date from which one’s look-back period begins. In 49 states and D.C, the look back period is 60 months. In California, the look back period is 30 months. New York will also be implementing a 30-month look-back period for their Community Medicaid program, which provides long-term home and community based services. (At the time of this writing, NY has a 60-month look-back for nursing home Medicaid, but no look-back for Community Medicaid). As an example of the look back period, if a Florida resident applies for Medicaid on Jan. 1, 2021, their look-back period extends back 60 months to Dec. 31, 2015. All financial transactions during that timeframe will be subject to review.

Examples of the type of transactions that could result in a penalty include money that was gifted to a granddaughter for her high school graduation, a house transferred to a nephew, collectors’ coins sold for half their value, or a vehicle donated to a local charity. Even payments made to a personal care assistant without a formal care agreement or assets that were gifted, transferred, or sold under fair market value by a non-applicant spouse can violate the look-back period and result in a period of Medicaid ineligibility.

Even after the “initial” look back period, if a Medicaid beneficiary comes into some money, say for example, via an inheritance, and gives all (or some) of the money away, he / she is in violation of the look back rule. Said another way, despite an initial determination that one has not violated the 60-month (or 30-month in CA and soon for NY Community Medicaid) look back period and is receiving long-term care Medicaid, he / she can violate this rule, and hence, be disqualified for Medicaid benefits.

The American Council on Aging now offers a free, quick and easy Medicaid eligibility test for seniors.

For Which Medicaid Programs is Look-Back Relevant
Medicaid offers a variety of programs and the look-back period does not necessarily apply to all of them. This article is focused on elderly care and Medicaid benefits for long-term care, and these programs consider the Medicaid look-back period. Therefore, if one is applying for nursing home Medicaid or for a Home and Community Based Services (HCBS) Medicaid Waiver, the state’s Medicaid governing agency will look into past asset transfers.

Medicaid programs such as those for pregnant mothers and newborn children do not have a look-back period.


How Look-Back Varies by State
While the federal government establishes basic parameters for the Medicaid program, each state is able to work within these parameters as they see fit. Therefore, all 50 states do not have the same rules when it comes to their Medicaid programs nor do they have the same rules for their look-back period. As of 2021, every state, but California, has a Medicaid Look-Back Period of 60 months (5 years). California has a much more lenient look-back period of 30 months (2.5 years), and New York will be phasing in a 30-month look back for their Community Medicaid beginning April 1, 2021.

The “penalty divisor”, which is used to calculate the penalty for someone found in violation of the look-back period, also varies by state. The penalty divisor is tied to the average cost of nursing home care in a specific state. For instance, a state may use a daily average penalty divisor or a monthly average penalty divisor. Penalty divisors by state can be found here.

Some states may not implement the look-back period for community / in-home care. One such example is New York, which only uses the look-back period for nursing home care. However, as mentioned above, a 30-month look-back period will be phased in for home and community based services. In addition, some states might allow applicants an exception for small gifts. Pennsylvania is one such state and allows Medicaid applicants to gift as much as $500 / month without violating Medicaid’s look-back period.

The Medicaid look-back period is complicated, especially since the rules that govern it vary by state. Therefore, it is best to contact a professional Medicaid planner to learn more about the Medicaid look-back period in the state in which one resides.


Unintentional Violations of Look-Back Rules
IRS Gift Tax Exemption – The IRS allows an annual estate and gift tax exemption. This means, as of 2021, an individual in the U.S. can gift up to $15,000 per recipient without paying taxes on the gift(s). However, one may not realize this federal tax exemption does not extend to Medicaid’s rules. Said another way, if one gifts $10,000 to a daughter or son, this gift is not exempt from Medicaid’s look-back period. As mentioned above, even a cash gift to a family member for graduation can be in violation of the look-back rule. It’s also important to note, the rules that govern gifting vary by state, further complicating this possible violation. More.

Lack of Documentation – Another way one may unknowingly violate Medicaid’s look-back rule is by not having sales documentation for assets sold during the look-back period. While the assets may have been sold for fair market value, if documentation is not available to provide proof, it may be determined one has violated the look-back period. This is particularly relevant for assets, such as automobiles, motorcycles, and boats, that have to be registered with a government authority.

Irrevocable Trusts (also called Medicaid Qualifying Trusts) – One might assume that these type of trusts are exempt from Medicaid’s look-back period, but this is not always true. The term, Medicaid Qualifying Trust, can create confusion, as the name suggests it is used to qualify for Medicaid. Unfortunately, if the trust is created during the look-back period, it is considered a gift, and therefore, is in violation of the look-back period. In simple terms, a Medicaid Qualifying Trust is a legal arrangement where assets are transferred from an individual, called the grantor, to a third party, called the trustee. The trustee becomes the owner of the assets and holds them for the named beneficiary. A variety of assets can be transferred via a trust and may include a Certificate of Deposit (CD), stocks, property, cash, and annuities. The term, irrevocable, means that the grantor cannot amend or cancel the trust.

Paying a Family Member to Provide Care – while it is acceptable under Medicaid rules to pay family members for providing care, doing so without proper legal documentation and caregiver agreements is a very common cause of Medicaid penalties. More information is provided below on how to do this without breaking Medicaid’s rules.


Look-Back Rule Exceptions & Loopholes
There are several exceptions and loopholes to Medicaid’s look-back rule. For instance, certain transfers can be made without violating Medicaid’s look-back period in order to protect an applicant’s family from having too little from which to live. These exceptions allow asset transfers without fear of penalty. To ensure they are done correctly and to avoid penalization, it is highly recommended one consult with a Medicaid planning professional prior to making any asset transfers.

Joint Assets of a Married Couple
For Medicaid eligibility purposes, all assets of a married couple, which are considered jointly owned, are calculated, and a portion is allocated to the non-applicant (community) spouse in order to prevent spousal impoverishment. This is called the Community Spouse Resource Allowance (CSRA), and as of 2021, may be as high as $130,380. The federal government sets this figure, and states may elect to use a lower figure. For example, South Carolina has a maximum CSRA of $66,480.

Each state is either a 50% or 100% state. For 50% states, a community spouse can keep half of the couple’s joint assets, up to $130,380, or in the case of South Carolina, up to $66,480. For example, a couple has assets equal to $300,000 in a state that has a maximum CSRA of $130,380. In a 50% state, this means that $150,000 in assets belongs to the applicant spouse and $150,000 in assets belongs to the non-applicant spouse. The non-applicant spouse can keep up to $130,380 of those assets. (The non-applicant spouse is generally only able to retain $2,000 of those assets). In a 100% state, a community spouse can retain 100% of the couple’s assets, up to the allowable $130,380, or again, in South Carolina, up to $66,480. Therefore, if a couple has $120,000 in assets in a state that has a maximum CSRA of $130,380, the non-applicant spouse is entitled to all $120,000 in assets. (To see CSRA and applicant asset limits by state, click here).

When there are excess assets, they must be “spent down” in order to meet Medicaid’s asset limit for qualification. It is not unusual that they be spent on the cost of long term care, whether that be nursing home care or in-home care, until the spouse in need of long-term care meets the asset limit. Other ways in which excess assets can be “spent down” are discussed further below in this article.

Asset Transfers to Minor Children
Transfers for the benefit of one’s child(ren,) given the child(ren) are under 21 years old, are disabled, or are legally blind. In addition to the transfer of assets, this includes the establishment of trusts.

Asset Transfer of a Home
One can transfer a home to a sibling. The sibling to which the home is being transferred must have ownership in it and must have lived in it for at least one year prior to the Medicaid applicant relocating to a nursing home. A home can also be transferred to an adult child who has served as a caregiver for their parent(s). This is called the caregiver child exemption. In order to be eligible for this exemption, the adult child must have been the primary caregiver of their aging parent(s), preventing the parent(s) from having to relocate to a nursing home or assisted living, and lived in the home with their parent(s) for at least two years prior to the parent(s) entering a nursing home.


What to Do When You’ve Violated Medicaid’s Look-Back Rules?
If one is in the unfortunate position of having violated Medicaid’s look-back period, there are ways in which one can still gain Medicaid eligibility. Usually the best course of action is to work with a professional Medicaid planner, as this is a precarious situation, and if not handled correctly, will result in a penalization period.

Free initial consultations with Medicaid planning professionals are available. Get started here.
Asset Recuperation
If one has gifted assets or transferred them for under fair market value and is able to recuperate the assets, the penalization period will be reconsidered. Therefore, if there has been any violation of the look-back period, it is extremely important to try to recover all assets. In some states, all assets transferred must be recuperated or the penalization period will remain the same. Other states might allow for partial recuperation of assets and adjust the penalty period accordingly.

Undue Hardship Waiver
If one has tried to recover assets they have gifted or transferred, but were not able to do so, they can apply for an undue hardship waiver. The Medicaid applicant must prove recuperation of assets failed, and if not granted Medicaid benefits, they will face significant hardship. This means they won’t be able to provide food, clothing, or shelter for themselves. It is very hard to be granted an undue hardship waiver unless it is very clear that the individual will suffer significant hardship without it.


Spend Down Assets Without Violating the Look-Back Period
There are ways for one to spend down excess assets without violating Medicaid’s look-back period, and hence, avoid penalization. (Calculate your total spend down amount here.) While the following strategies are all ways in which one can do so, the look-back period is extremely complicated. Therefore, it is highly recommended one contact a professional Medicaid planner prior to using one of the following strategies. Read more.

Life Care Agreements
Life care agreements, also called caregiver agreements or elder care agreements, are a great way for seniors who require a caregiver to spend down extra assets without violating Medicaid’s look-back period. In simple terms, caregiver agreements, which generally last for the duration of the care recipient’s life, are legal contracts between a caregiver, often a relative or close friend, and an elderly individual who requires care. Often life care agreements remain in effect even after the senior care recipient moves into a nursing home, as the caregiver can serve an advocate role for the senior. The contract needs to include the date care services are to begin, the type of care that will be provided, such as personal care assistance, light housecleaning, and preparation of meals, the frequency / hours the care will be provided, and the rate of pay. The pay rate must be reasonable for the area in which one lives. (If not, one may be in violation of the look-back period.) Life care agreements should make it very clear that payments to a caregiver are not simply gifts. That said, it’s best to also have supportive documentation, such as a log of executed caregiving duties, the days and number of hours worked, and written invoices for payment.

Medicaid Exempt Annuities
Medicaid exempt annuities, sometimes called Medicaid compliant annuities, are another way one can spend down assets without violating Medicaid’s look-back period. Annuities convert a lump sum of cash into a monthly income stream for the Medicaid applicant or their spouse, effectively lowering one’s countable assets for Medicaid eligibility. Annuity payments can be for the duration of the recipient’s life or for a set period of time. It’s important to note, each state has its own rules for Medicaid annuities, and not all annuities may be Medicaid compliant. In addition, if one purchases a deferred annuity, which means payments are delayed until a date in the future, this violates Medicaid’s look-back period. When considering an annuity, one must proceed with caution.

Paying Off Debt
Paying off debt, such as a mortgage or credit cards, is not in violation of Medicaid’s look-back period and effectively lowers one’s assets.

Home Modifications
One can also use assets in excess of Medicaid’s eligibility limit for home modifications and reparations without violating the look-back period. This includes replacing old plumbing systems, updating electrical panels, adding first floor bedrooms and / or bathrooms, installing wheelchair ramps, chair lifts, widening doorways to allow wheelchair access, and replacing carpet with more wheelchair friendly surfaces.

Irrevocable Funeral Trusts
Irrevocable funeral trusts, which pay for funeral and burial costs in advance, provide a way to spend down excess assets without violating Medicaid’s look back rule. The term, “irrevocable”, meaning the trust cannot be changed or terminated, is extremely important, as funeral trusts that are revocable violate the look back rule. More.

Determine Your Medicaid Eligibility


Read more related articles at:

Five year rule for Medicaid is often misunderstood

The Medicaid Look Back Period Explained

Also, read one of our previous Blogs here:

Protect Assets from Medicaid Recovery


Hiring an Elder Law Attorney



An elder law attorney helps seniors and families

Having the essential legal documents in place gives you the necessary legal rights to provide the best care for your older adult, now and at the end of life.

That’s why it’s so important to find an expert lawyer that you trust to draw up the right documents.

We explain what an elder law attorney does and how they help seniors and caregivers.

We also share two ways to find an elder law attorney in your area and 5 smart tips for hiring someone who’s reputable and experienced.


What does an elder law attorney do?

Elder law is a specialized legal area focused on older adults and their adult children.

This legal specialty focuses on specific needs, including:


2 ways an elder law attorney helps seniors and family caregivers

1. Plan for the future and protect assets
An elder law attorney has the expertise to make recommendations on how to plan for future care needs.

They often answer questions like:

  • How can I qualify for Medicaid so it will pay for nursing home care?
  • How do I protect mom’s house and assets, but still afford the care she needs?
  • How do I make sure my wife will have money left after all my care expenses are paid?
  • What to do if I need to become dad’s guardian or conservator?
  • After I pass away, will Medicaid try to get money from my estate for the medical bills they paid and cause problems for my spouse or kids?

These are complicated questions and the answers will be different for each person.

A reputable elder law attorney helps protect your senior’s legal and financial situation and helps you figure out how to pay for the care they’ll need.

The fees are well worth it if they can save your family thousands of dollars and avoid future legal headaches.

2. Ensure all the legal documents are correct for your state
Laws are different (and very specific) for each state, so it’s important that the documents are prepared correctly.

This is especially true for documents like a Power of Attorneyliving will (aka advance directive), and will.

A local elder law attorney can make sure that your older adult has completed all the important legal documents and that they’re compliant with state and local laws.


2 ways to find an elder law attorney

1. Get a referral from someone you know
Getting a referral from family or a friend is a great way to find a lawyer.

If they have a lawyer they’re happy with and would work with again, that’s a good sign.

It’s best to get a referral from someone whose legal needs were similar to yours. But even if you need an elder care lawyer and your cousin worked with an excellent civil attorney, that referral is still useful.

Also, good lawyers typically know other good lawyers and will probably be able to refer you to a colleague they respect.

Similarly, financial advisors, accountants, and fiduciaries (someone legally appointed to manage money) are professionals who often work with elder law attorneys.

If you know and trust one of these professionals, ask them for a referral.

2. Check the National Academy of of Elder Law Attorneys
The National Academy of of Elder Law Attorneys (NAELA) is the professional organization for attorneys who specialize in elder law and special needs planning.

Their website includes an attorney finder to help you find an elder law attorney in your area.


5 smart tips for hiring a good elder law attorney

After getting referrals, you’ll still need to choose an attorney.

Don’t make up your mind about hiring a lawyer until you’ve met them, discussed your older adult’s needs, and checked their credentials.

1. Meet for an initial consultation 
An in-person meeting helps you get a feel for how they work and if their style works for you.

If you summarize your needs in advance, many lawyers will be willing to meet for 15 to 30 minutes at no charge. If there is a fee for a consultation, find out how much it will be.

If you can, meet with a few lawyers and present the same situation to each. Then, you can compare their responses.

That helps you confirm that the overall approach is legitimate and prompts you to ask questions about any differences in advice.

2. Find out how much experience they’ve had with issues similar to yours
Experience comes with years in practice and with how many of those types of situations they’ve dealt with.

So, it’s a good idea to look for a lawyer with experience handling matters similar to your older adult’s.

For example, if they need a Power of Attorney, long term care planning, and estate planning, ask prospective attorneys to describe their experience with those matters.

3. Evaluate their customer service
Working with someone who is professional and responsive is important.

After speaking with a lawyer, ask yourself:

  • Are they polite and professional?
  • Do they return calls or emails in a timely manner?
  • Do they take time to explain things to make sure you have a good understanding?
  • Do they follow through with things they’ve said they’ll do?

4. Take plenty of notes
To help you remember what each lawyer said and how you felt about them, be sure to take notes during and after each meeting.

Later, review your notes to help you make the final decision.

5. Check their credentials
Before hiring any lawyer, check the State Bar Association website for your state.

Look up the attorney’s name or Bar number to make sure they’re actively licensed to practice law in your state. This will also show if they’ve ever been publicly disciplined.

Read more related articles at:

6 Things an Elder Law Attorney Can Do to Help Family Caregivers

Things to Consider if You Need an Elder Law Attorney

Also, rad one of our previous Blogs at:

How Do I Find a Great Elder Law Attorney?

Click here to check out our On Demand Video about Estate Planning.




How to Get Guardianship of an Elderly Parent

How to Get Guardianship of an Elderly Parent

Marlo Sollitto Updated 

When an older adult loses the ability to think clearly, it also affects their ability to make informed and meaningful decisions. This may occur due to the onset of Alzheimer’s disease or other related dementias, stroke, brain injury, mental illness or other serious health issues. If the person you are caring for is unable to make rational, clear-headed decisions about their health care, finances or other aspects of life, seeking legal guardianship may be necessary to ensure their safety and quality of life.

What Is Guardianship for Elderly Individuals?

Guardianship is an option in cases where an older adult has not appointed a power of attorney for health care or finances and is incapacitated due to advancing age, illness or disability. Even if an individual has named a power of attorney (POA), guardianship may still be necessary if their POA is not durable, meaning it ends upon their incapacitation. Courts most commonly see family caregivers seeking guardianship for adults with dementia who did not make proper legal preparations for the future.

Read: Durable vs. Springing Power of Attorney: What’s the Difference?

It is important to understand that differences in terminology exist between states. In some states, guardianship gives a person control over where the ward (the incapacitated individual) lives, what health care they receive and how their day-to-day needs are met. Conservatorship, on the other hand, gives a person the ability to handle a ward’s financial decisions, such as paying bills, managing investments and budgeting. Sometimes these terms may be used interchangeably.

To act as someone’s legal guardian or conservator, the individual petitioning for guardianship must go to court to have the ward declared incompetent based on expert findings. If the ward is ruled incompetent and the petitioner is a suitable candidate to serve as a guardian, then the court transfers the responsibility for managing finances, living arrangements, medical decisions or any combination of these tasks to the petitioner.

This process often takes a good deal of time and money. If family members disagree about the need for guardianship or who should act as a guardian, the process can be especially painful, prolonged and costly.

What Is a Court-Appointed Guardian?

A guardian (or conservator) is a person who has court-ordered authority to handle an incapacitated person’s affairs. Guardians have a fiduciary duty to act in the best interests of the person they are appointed to serve. Sadly, it strips the ward of many rights, but it might be the only way to gain the legal authority to make crucial decisions on their behalf.

Who Can Be a Legal Guardian?

At a hearing, the court decides if the person seeking guardianship is well suited for this role. A petitioner’s criminal background, credit history and potential conflicts of interest are typically factored into this decision.

In cases where more than one person is seeking responsibility for a ward’s needs, the court will determine who is best qualified for the position. Sometimes one person is appointed to handle the ward’s personal and medical decisions (often referred to as guardianship of the person), and another is granted responsibility for managing the ward’s financial matters (guardianship of the property). The ward’s preferences and any legal documents that were prepared prior to their incapacitation (e.g., non-durable POA, will or advance directive) are factored into this decision when possible.

Many states give preference to the ward’s spouse, adult children or other family members, since they are often most familiar with the person’s unique needs and abilities. If a relative or friend is not willing or qualified to serve in this role, then a professional guardian or public guardian may be appointed.

When Is a Guardian Appointed?

A guardian or conservator can only be appointed if a court hears evidence that the person lacks mental capacity in some or all areas of their life and determines they can no longer make informed decisions for themselves. Allegedly incapacitated people have the right to an attorney and the right to object to the appointment of their guardian or conservator.

In rare cases, emergency guardianship may be granted right away if an elder’s health and/or finances are in jeopardy. However, guardianship is a very serious intervention and should only be considered a last resort.

What Does a Guardian Do?

Whenever possible, the guardian or conservator must seek the input of the ward and must only act in areas authorized by the court. Guardians can be given limited or broad authority, depending on what a court rules is needed after a thorough investigation. Sometimes the court delegates responsibilities to several parties. For example, a bank trustee might serve as a corporate guardian to oversee financial decisions while a family member handles personal decisions like living arrangements. Generally, the court requires reports and financial accounting at regular intervals or whenever important decisions are made. Prior court approval is even required for some larger decisions.


Do Guardians Receive Compensation?

All court-appointed guardians are entitled to reasonable compensation for their services. When a so-called family guardian (a spouse, family member or friend) is appointed, they typically do not charge the ward for their services. In cases where a private guardian is appointed, these individuals are paid directly from the ward’s estate if they can afford it. In most cases, the compensation amount must be approved by the court, and the guardian must carefully account for all their services, the time these tasks require and any associated out-of-pocket costs. Public guardians are appointed to wards who do not have friends or family to fill the role or the resources to hire a professional guardian. They are funded by public money, such as government funds and charitable contributions.

Obtaining Legal Guardianship

To learn more about the legal process of seeking guardianship or conservatorship in your state, it’s best to consult a lawyer.

Read more related articles at:

5 Ways To Know You Need A Guardianship For Mom (Or Dad)


Also, read one of our previous Blogs at:

What Should I Know about Guardianship?

Click here to check out our On Demand Video about Estate Planning.



Baby Boomers

The Aging of America: Will the Baby Boom Be Ready for Retirement?

The Aging of America: Will the Baby Boom Be Ready for Retirement?

This article is part of a broader study of saving funded by the National Institute on Aging and TIAA-CREF.

The baby boom generation—the roughly 76 million people born between 1946 and 1964—has been reshaping American society for  decades. From jamming the nation’s schools in the 1950s and 1960s, to crowding labor markets and housing markets in the 1970s and 1980s, to affecting consumption patterns almost continuously, boomers have altered economic patterns and institutions at each stage of their lives. Now that the leading edge of the generation has turned 50, the impending collision between the boomers and the nation’s retirement system is naturally catching the eye of policymakers and the boomers themselves.

Retirement income security in the United States has traditionally been based on the so-called three-legged stool: Social Security, private pensions, and other personal saving. Since World War II the system has served the elderly well: the poverty rate among elderly households fell from 35 percent in 1959 to 11 percent in 1995.

But the future is uncertain. Partly because of the demographic bulge created by the baby boomers, Social Security faces a long-term imbalance. The solution, even if it involves privatization, must in some way cut benefits or raise taxes. The private pension system has changed dramatically in ways that give workers increased discretion over participation, contribution, and investment decisions and easier access to pension funds before retirement—thus raising questions about how well future pensions can help finance retirement. Personal saving, also problematic, has remained anemic for over a decade. Net personal saving other than pensions has virtually disappeared.

These developments would be enough to raise concern about retirement preparations under the best of circumstances. But the prospect of a huge generation edging unprepared toward retirement raises worrisome questions about the living standards of the baby boomers in retirement, the concomitant pressure on government policies, and the stability of the nation’s retirement system.


Are the baby boomers making adequate preparations for retirement? In part, the answer depends on what is meant by “adequate.” One definition is to have enough resources to maintain preretirement living standards in retirement. A rule of thumb often used by financial planners is that retirees should be able to meet this goal by replacing 60-80 percent of preretirement income. Retired households can maintain their preretirement standard of living with less income because they have more leisure time, fewer household members, and lower expenses. Taxes are lower because retirees escape payroll taxes and the income tax is progressive. And mortgages have, for the most part, been paid off. On the other hand, older households may face higher and more uncertain medical expenses, even though they are covered by Medicare.

From a public policy perspective, assuring that retirees maintain 100 percent of preretirement living standards may be overly ambitious. But should policymakers aim to ensure that they maintain 90 percent of their living standards? Or that they stay out of poverty? Or use some other criterion? Retirement planning takes time, and these issues need to be addressed sooner rather than later.


A second big question is how to measure how well baby boomers are preparing for retirement. Studies that focus only on personal saving put aside for retirement yield bleak conclusions. One found that in 1991 the median household headed by a 65-69 year old had financial assets of only $14,000. But expanding the measure to include Social Security, pensions, housing, and other wealth boosts median wealth to about $270,000.

A third issue—crucial but as yet little explored—is which baby boomers are not providing adequately for retirement and how big the gap is between what they have and what they should have. Some boomers are doing extremely well, others quite poorly. Summary averages for an entire generation may not be useful as descriptions of the problem or as          suggestions for policy.

The uncertain prospects for the baby boomers in retirement are particularly troubling because, as a society, we as yet understand little about the dynamics of retirement. Only one or two generations of Americans have had lengthy retirements, and the crucial retirement issues—health care, asset markets, Social Security, life span—keep changing rapidly, making long-term predictions even harder.

How Well Are the Boomers Doing?

Interpreting the Evidence

Only a few studies have examined how well the boomers are preparing for retirement. The Congressional Budget Office recently compared households aged 25-44 in 1989 (roughly the boomer cohort) with households the same age in 1962. Boomer households, it turned out, had more real income and a higher ratio of wealth to income than the earlier generation. Though this finding seems promising, in fact the CBO study implies that baby boomers are going to do well in retirement only if (i) the current generation of elderly is thought to be doing well, (ii) the retirement needs of the two generations are the same, (iii) the experience from middle age to retirement is the same for both, and (iv) boomers will be content to do as well in retirement as today’s retirees. None of these is certain. For example, although today’s elderly are generally thought to be doing well, some 18 percent were living below 125 percent of the poverty line in 1995. And the boomers’ longer life expectancy means that they will need greater wealth for retirement.

Whether the boomers and the previous generation will have similar experiences from middle age to retirement is an open—and still evolving—question. The earlier generation benefited from the growth of Social Security and housing values in the 1970s. But the boomers have gained from the dramatic rise in the stock market since the early 1980s, from smaller household size, which reduces living expenses, and from higher employment rates for women, which will raise their pension coverage. In addition, boomers are more likely to be in white-collar work and so should expect earnings to peak later in life and be able to work longer if they wish.

Finally, boomers may not be content with the living standard of today’s retirees. They may aim instead for retirement living standards more comparable to those of their own working years. For all these reasons, how to inter-pret CBO’s finding is unclear, even if the finding itself is unambiguous.

The most comprehensive study of these issues was undertaken by Stanford’s Douglas Bernheim in conjunction with Merrill Lynch. Bernheim developed an elaborate computer model that simulates households’ optimal saving and consumption choices over time, as a function of family size, earnings patterns, age, Social Security, pensions, and other factors. He then compared households’ actual saving with what the simulations indicated they should be saving. His primary finding, summarized in a “baby boomer retirement index,” is that boomers are saving only about a third of what they need to maintain preretirement living standards in retirement.

The index has attracted much attention but is not well understood. It does not measure the adequacy of saving by the ratio of total retirement resources (Social Security, pensions, and other assets) to total retirement needs (the wealth necessary on the eve of retirement to maintain preretirement living standards). Instead, it examines the ratio of “other assets” to the part of total needs not covered by Social Security and pensions.

As a result, the index reveals little about the overall adequacy of retirement preparations (see table 1). In case A, a hypothetical household needs to accumulate 100 units of wealth. It is on course to generate 61 in Social Security, 30 in pensions, and 3 in other assets. Total retirement resources are projected to be 94 percent of what is needed to maintain living standards. But according to the boomer index, the household is saving only 33 percent of what it needs.


Table 1. Two Ways to Measure Adequacy of Retirement Saving
Units of wealth
Case Social Security
Other assests
Total resources
index (%)
Boomer index (%)
A 61 30 3 100 94 33
B 0 0 33 100 33 33
C 20 20 20 100 60 33
D 61 0 33 100 94 85
E 61 0 33 100 78 45
F 61 30 3 95 99 75
G 61 30 3 93 101 150


Thus, a baby boomer index standing at one-third does not imply that, absent changes in saving behavior, boomers’ retirement living standards will be one-third their current living standard. It could mean that (as in case B), or it could mean retirement living standards will be 60 percent of current living standards (case C), or 94 percent (case A), or even over 99 percent (if Social Security and pensions were 99 and other saving were 0.33).

A second problem is that changes in the boomer index over time, or differences across groups, do not correspond to changes or differences in the adequacy of overall retirement saving. If, as in case D, the household in A rolls over its pension into an IRA, the boomer index soars, though total retirement resources are unchanged. If, as in case E, household A rolls over half of its pension into other assets and spends the rest on a vacation, the household has a higher boomer index, but less adequate total retirement preparation.

Finally, the boomer index can be extremely sensitive to estimates of retirement needs. In case F, retirement needs are 5 percent lower than in A, and the index rises from 33 percent to 75 percent. In case G, retirement needs are 7 percent lower than in A, and the index rises to 150 percent.

Bernheim points out that his model understates the retirement saving problem. The wealth measure, he notes, includes assets the household has earmarked for retirement as well as half of other (non-housing) wealth. The model also assumes no cuts in future Social Security benefits, no increases in Social Security taxes, and no increase in life span.

But in other ways the model overstates the problem. It assumes that any man not covered by a pension at the time of the survey, when respondents are 35-45 years old, will never be covered, though pension coverage rates tend to rise a good bit as a worker ages. The model also likely understates pension benefits since it uses benefit data from the 1970s. Because the pension system grew rapidly from the 1940s to the 1970s, workers retiring in the 1970s likely had fewer years in the pension system and hence lower benefits than the boomers will upon retiring.

The model excludes all housing wealth and inheritances—no small matter, since, by Bernheim’s calculation, including housing would raise the index to 70 percent, and a fair proportion of boomers is likely to receive substantial inheritances.

The model assumes that people will retire at age 65, though the normal Social Security retirement age will be 66 for most boomers, 67 for the youngest. The model also excludes all earnings after “retirement,” though about 18 percent of the income of the elderly today is from working. And with partial retirement on the increase, retired boomers may work even more regardless of the adequacy of saving.

Finally, the model makes no allowance for retirees’ lower work-related expenses or lower expenses for mortgages or other durable goods—such as furniture, appliances, and cars. Whether all these biases are larger or smaller than those in the opposite direction noted by Bernheim is unclear. Measuring and including these items is an important area for further research.

A New Perspective

Fundamental questions about retirement saving remain not only unanswered, but unasked. What proportion of households is saving adequately for retirement? What are the characteristics of those households? How has the proportion changed over time? Among those not saving enough, how big is the problem?

Table 2 begins to answer such questions by presenting my own estimates of the proportion of married households, with the husband working, who are “on track” toward accumulating enough wealth for retirement. The measure of “on track” is based on calculations in a study by Bernheim and John Karl Scholz, of the University of Wisconsin, that determines how much a household needs to have saved by a given age, given its earnings, prospective Social Security benefits, pension status, family size and other characteristics. (That study uses the Bernheim model described above, so the data suffer from all the biases already mentioned. Another bias here is that the sample includes only married couples where the husband works full time. Other married couples and singles are likely to be faring worse.)


Table 2. Proportion of Married Households Saving Adequately for Retirement
Proportion Saving Adequately When:
Year Net assets exclude housing equity Net assets include half of housing equity Net assets include all of housing equity
All householdsa
1983 44 66 76
1986 53 71 78
1989 43 63 72
1992 47 61 70
Baby boomer householdsb
1989 48 67 73
1992 48 63 71
Source: Author’s calculations from the Survey of Consumer Finances.
a Husband is aged 25-64 and works at least 20 hours per week.
b Husband was born between 1946 and 1964 and works at least 20 hours a week.


When housing equity is not counted, slightly less than half of all households—and about the same share of all boomers—were saving adequately in 1992. When half (all) of housing equity is counted, the adequacy rate climbs to 61 percent (70 percent).

Adequacy rates rise with education and income. Within the baby boom generation, adequacy rates generally decline somewhat with age. They are higher for boomers with pensions than for those without, either because pensions raise households’ overall wealth or because people more oriented toward saving and thinking about retirement are also more likely to have jobs with pensions.

High adequacy rates do not necessarily require high levels of saving. For example, suppose annual retirement needs are 75 percent of final earnings. According to the Social Security Administration, Social Security benefits replace about 46 percent of final earnings for the average worker earning $50,000 at retirement. (Note that in this example Social Security replaces 61 percent—46/75—of total retirement needs, as in case A in table 1. The percentage would be higher for workers with lower earnings.) With pensions typically replacing 25-30 percent of final earnings, a household with Social Security and a pension would not need much more saving to maintain adequate living standards, especially if the household can work for a time in retirement or expects to receive bequests.

As table 3 shows, the wealth shortfall among households that are not saving adequately (ignoring all housing equity) is relatively small for many. The median inadequate saver has a shortfall of $22,000, or about six months of earnings—a problem that could be solved either by postponing retirement for six months or by lowering retirement living standards a little. Even among 60-64 year-olds, the median inadequate saver could completely resolve his or her saving shortfall by working for two more years past age 65.


Table 3. Median Shortfall in Retirement Wealtha
Age In dollars In terms of annual earnings
25-29 2,960 0.12
30-34 3,400 0.10
35-39 13,180 0.37
40-44 26,940 0.73
45-49 33,500 0.82
50-54 65,100 1.25
55-59 51,800 1.47
60-64 75,470 2.17
All households 22,480 0.52
Baby boomer
13,480 0.38
Source: Author’s calculations based on the 1992 Survey of Consumer Finances.
a The sample is households not saving adequately for retirement when housing equity is not included.


Thus, the glass can be viewed as half full or half empty. When housing equity is ignored, the typical household seems to be barely saving adequately or just missing. When housing is included, over two-thirds of households appear to have more than the minimum needed, given their age and other factors. Roughly speaking, a third of the sample is doing well by any measure, a third is doing poorly by any measure, and the middle third is (or may be) just hanging in there. Both of the following statements are equally true. Up to two-thirds of the households are now saving at least as much as they should be. And two-thirds are “at risk” in that any deterioration in their situation could make it impossible for them to maintain their living standards in retirement.

In short, two key factors matter tremendously to any characterization of the problem: the heterogeneity of saving behavior across households and uncertainty concerning the right measures of wealth to use.

Areas of Uncertainty

The boomers’ prospects are also complicated by uncertainty in other areas: retirement patterns, life spans, home values, asset markets, health care costs, and the economy itself.

Average age at retirement, which fell through the 20th century for men, may start rising regardless of the adequacy of saving. Many of today’s jobs do not depend on “brawn” and can thus be done by older people. The normal Social Security retirement age will rise to 66 by 2009 and 67 by 2027 even if no further changes are made in Social Security.

Partial retirement may matter as well. Many retirees cut back on work gradually rather than abruptly. According to a study by economist Christopher Ruhm, only 36 percent of household heads retire immediately at the end of their career jobs. Nearly half remain in the labor force for at least ve years. Of workers eligible for a pension, 47 percent continue to work after leaving their career job. If people continue to work even after retirement, they will be better able to support living standards in retirement.

A related uncertainty involves life span. Expected remaining life spans of 65 year-olds have grown in the past two decades and are projected to grow further. Living longer means having to stretch a given amount of money over a longer period.

Uncertainty regarding home equity is twofold. First, how will housing prices evolve? Both demographic pressures and the reduction in tax rates in the 1980s may reduce the long-term value of housing. And, second, regardless of housing values, to what extent should housing be counted as part of household wealth? In recent decades, the elderly have been reluctant to cash in their housing equity. But baby boomers have been willing to extract housing equity and were major recipients of home equity lending booms in the 1980s and 1990s. It remains to be seen whether the boomers in retirement will act more like themselves in earlier years or like current retirees. In any case, a household with low financial assets that lives in a $300,000 house and refuses to dip into housing equity may not be considered a pressing social concern.

Asset markets too are uncertain. Equity values cannot continue to grow as rapidly as they did in 1996. And even if the boomers accumulate what seem to be sufficient retirement funds, they will, loosely speaking, all want to cash in those funds at roughly the same time. That could mean massive sell-offs of stocks and bonds that could depress asset prices. Conceivably asset prices could fall sharply, but since markets are forward looking, asset prices may instead be stagnant for a long period. Finally, the evolution of health care costs and of the economy as a whole could have a major impact on the adequacy of retirement preparations.

What’s in Store?

The retirement prospects for the baby boomers are uncertain. One issue is what policymakers and boomers themselves will accept as a reasonable goal for retirement living. More thought needs to be given as to how to assess living standards when, as a matter of biology, retirees face declining health. In addition, they typically have more leisure time and can literally substitute time for money. A second source of uncertainty is the boomers themselves. Whatever imponderables the economy as a whole may offer, baby boomers can improve their retirement prospects by saving more—that is, by reducing their current living standards.

What can government do? First, keep the fiscal house in order by reducing the long-term budget deficit in ways that do not reduce private saving. Second, the government could provide, or encourage others to provide, financial education to workers and households on how much they need to save. Third, the government should encourage people to use the many saving incentives already in place. Fourth, judicious Social Security and pension reform, especially pension reform that raises pension coverage, could help resolve these problems and raise private saving at the same time.

Read more related articles at: 

The pace of Boomer retirements has accelerated in the past year

Millions of baby boomers are getting caught in the country’s broken retirement system

Also, read one of our previous Blogs at:

What Is the VA’s Plan for Long-Term Care for Baby Boomers?

Click here to check out our On Demand Video about Estate Planning.


Is My Parent At The Point Of Incapacity?

Is My Parent At The Point Of Incapacity?

Q: My 87 year old father lives alone. His house has become increasingly dirty, but he refuses to get help, even though I’m sure he needs it. I’m worried that he’s becoming incompetent, but he doesn’t want to go see the doctor. What can I do?

A: This situation does come up a fair bit with aging parents and relatives. I’m sorry to say there usually are no easy solutions. But there are definitely things you can and should do, and it’s better to act sooner rather than later.

Let’s review what you can do. I’ll also explain what I’ve learned about “incompetence” over the years, and how doctors usually play a role in the evaluation of such older adults.

Then, I’ll share some thoughts on how older people and families can plan ahead, to avoid facing this kind of dilemma. And then last but not least, I share a few thoughts on taking care of yourself as you go through this.

What’s probably going on with your father

The usual concern, for a person of this age, is that the person may have developed a dementia such as Alzheimer’s disease.

This is a pretty reasonable worry, since an estimated 30% of people aged 85+ have dementia. And of course, if your older parent seems to be doing worse than before, when it comes to activities that require mental organization (such as keeping a house reasonably clean), that further increases the chance that some kind of brain deterioration is causing problems.

But, we should never start by jumping to the conclusion that someone has developed dementia.

The main thing you wrote above is that you’re worried about a dirty house and a refusal to get help. This could be due to thinking problems. But it could also be due to pain and mobility problems, combined with a common reluctance to accept assistance.

Still, I have to admit that in many similar cases that I’ve encountered, the older person does have cognitive impairment. And we do often find it’s substantial enough and irreversible enough to qualify as dementia.

Now, even if he does have dementia, that doesn’t mean we can’t improve his thinking. I often find that by adjusting medications or the older person’s situation, we can optimize brain function and help the person manage better, despite the underlying dementia.

We also sometimes find that an older person is experiencing delirium from an illness or other health problem, which can make the thinking worse than usual.

So, getting him the right medical evaluation and optimization is key. You might even be able to get him to the doctor not by saying “You need to be checked for dementia,” but by saying “We need the doctor to help you feel your best and be your best, since that helps you keep living at home for as long as possible, which you’ve said is important to you.” (It’s key to frame your suggestions as ways to help your father achieve his health and life goals.

Of course, these are all things that can be found out after the older person has been medically evaluated, and by someone who knows how to assess cognitive symptoms correctly.

Part of your frustration is that your father doesn’t want to go see a doctor. So you’re stuck: worried that something’s wrong, worried that your father has become “incompetent,” and unsure as to how to move forward since your father is refusing to cooperate. Let’s talk about your options for doing something, despite your father’s reluctance.

How to get help in helping your father

Start by asking yourself whether you think your father really might have lost mental insight and abilities, as opposed to simply making choices that you disagree with. (See “8 Behaviors to Take Note of if You Think Someone is Getting Alzheimer’s“.)

If you think he really is cognitively impaired, then you probably should consider pushing things a little more, to get him the help he seems to need.

I would also encourage you to make a list of specific concerns and red flags. You can use the “Quick Start Guide to Checking Older Parents” or a similar checklist, to help you identify specific problems that need attention.

Once you’ve decided how worried you are about dementia, and listed the key problems to address, here are some resources that can help:

  • Your father’s regular doctor. This can be a good place to start, especially if it’s a doctor who has known your father for a while. Contrary to popular opinion, the HIPAA regulations (which govern the privacy of health information) do not preclude you, an adult child, from contacting your father’s doctor and relaying your observations and concerns. You can see if the doctor is willing to hear you out on the phone, and then do send in your concerns in writing, since those will usually be scanned into the chart. The doctor may be able to help you persuade your father to come in. On the other hand, if the doctor waves off your concerns saying there’s nothing to do, you’ll need to look elsewhere for help. And you’ll want to look for a doctor who is more up-to-date on the medical care of aging adults with cognitive impairment. For more on how the doctor should evaluate cognitive impairment, see here: Cognitive Impairment in Aging: 10 Common Causes & 10 Things the Doctor Should Check.
  • Adult Protective Services (APS). To find contact information for your local APS office, enter your father’s zip code in the locator at Eldercare.gov. APS caseworkers respond to reports of abuse or neglect of older adults, including “self-neglect.” Generally, the identity of the person reporting a concern to APS is kept confidential, so your father wouldn’t be told you reported him (although he may have his suspicions of course). APS offices tend to be overworked and underfunded, as is often the case for social services. But in principle, they will look into the situation, visit your father, review medical information from his doctor, assess his capacity to understand risks and give informed consent, and take action to ensure his safety if warranted. APS does sometimes initiate a court petition for legal guardianship of an older person.
  • Social worker experienced with older adults. To find a social worker to help you troubleshoot the situation, you can try calling your local Area Agency on Aging (see the Eldercare.gov locator again). Some primary care offices also offer social work services, especially if they are bigger or serve vulnerable populations. You can also try asking around at local senior centers. That said, in my experience, it’s rare for social workers to visit aging adults at home unless they are sent by a home health agency. So although it’s worth looking for one, if you want someone to go see your father at home — which you probably do — you may need to pay for a geriatric care manager or other “eldercare problem solver”.
  • Geriatric care manager or eldercare expert. These professionals usually have to be paid out-of-pocket, and they specialize in helping aging adults and families get through all kinds of late-life challenges. They usually have a background in social work, gerontology, nursing, and/or family therapy. I have worked with several of them and they are quite helpful to families. They can do things like coach adult children on how to more constructively discuss difficult topics, mediate family conversations, and help families find the right kind of help. To find a professional affiliated with the Aging Life Care Association (formerly the National Association of Professional Geriatric Care Managers), visit AgingLifeCare.org.

How to know if an older person is “incompetent”?

Now, you’re getting help because presumably, you want to help your father with his goals, which for most aging adults include maintaining independence, dignity, and quality of life.

But you also mentioned a worry that he is becoming “incompetent.” This is an important question to address, and families often ask me to weigh in on this. What I tell them is that as a doctor, it’s not for me to say whether the person is “competent.” Instead, my role is to help assess an older person’s capacity to make medical decisions, and also to identify underlying medical problems that might temporarily or permanently affect decision-making.

You should know that the term “incompetence” was historically used to refer to a legal determination. In other words, it’s up to courts, not doctors, to say whether someone is incompetent. This is governed by state law so different states have different criteria. But overall, if someone is found in court to be incompetent, they often will be assigned a guardian or conservator to manage decisions on their behalf.

To decide whether an older person is legally competent, the court will need to know about the person’s ability to manage certain major types of decisions. These might include:

  • Medical consent capacity
  • Sexual consent capacity
  • Financial capacity
  • Testametary capacity
  • Capacity to drive
  • Capacity to live independently

For more on incapacity, see this article: Incompetence & Losing Capacity: Answers to 7 FAQs.

The tricky thing about capacity is that it can certainly change depending on the day and situation. For instance, a person who is sick and delirious might temporarily lose all the above capacities. A bad depression could also affect capacity for some time. People with dementia or other forms of cognitive impairment are also prone to have their mental capacities fluctuate somewhat, depending on the day and whether their brains are functioning at their best.

So how do doctors and psychologists weigh in on capacity? The truth is that it’s pretty variable, and it’s also an area of law and clinical practice that is evolving.

For the best information on how clinicians should address issues related to capacity in older adults, I recommend this resource, which was created as a joint effort between the American Psychological Association and the American Bar Association: Assessment of Older Adults with Diminished Capacity: A Handbook for Psychologists.

Obviously, as it’s written for clinicians rather than for the public, it’s rather long and technical. (There are links to similar handbooks for lawyers and for judges here.) But if you really want to understand this topic, that’s the best info I’ve found.

But bear in mind that although the handbook above describes the best recommended practices, many clinicians may practice a little differently, often due to lack of time or training.

For instance, because medical problems often interfere with an older person’s mental capacities, doctors are routinely asked to weigh in. In principle, when asked about someone’s capacity, a doctor should first want to know “Capacity to do what, or decide what?” And then the doctor should write a statement specific to that question, providing documentation supporting his or her conclusions. The doctor should also ideally state whether any incapacity seems likely to be permanent or not.

But that’s not how things often work in the real world. In practice, I’ve often been asked just to say whether an older person “has capacity” with no additional specifications. I’ve also seen many doctors write vague statements saying “Mr. So-and-so has lost his mental capacities.”

How valid are such statements? I don’t really know, and suspect it depends on the jurisdiction and the purpose to which the doctor’s note is used. For instance, some people have trusts or other services that require a “doctor’s statement” in order to allow someone else to step in, and these may have different standards compared to the courts.

How to plan ahead to avoid these problems

The very best approach, of course, is for an older person to have previously planned for this situation. By this, I don’t mean simply completing paperwork in order to designate a relative or friend as durable power of attorney for health, and also for finances.

However, such power of attorneys don’t quite address the situation that all aging adults should plan for: the possibility that they’ll be cognitively slipping and unable — or unwilling — to admit it and let others assist as needed.

I have only rarely seen older adults prepared for this, even though everyone has a fairly substantial chance of developing Alzheimer’s or another dementia provided they live long enough.  (Remember, about 30% of those aged 85+ are cognitively impaired, and it goes up to about 50% of those aged 90+.)

Being a doctor, rather than a lawyer, I’m not qualified to say what constitutes the best preparation. I will say that the better situations that I’ve encountered occurred when an older person had:

  • Created a trust,
  • Designated a trustee or fiduciary to take over when needed,
  • Specified what conditions would trigger trustee take-over, and
  • Specified what the care priorities should be in the event that the older person was unable to make decisions.

But again: I am not a lawyer and this is not legal advice. The expert advice consistently is to plan ahead, plan ahead, plan ahead.

To that I would add:

  1. Hope for the best
  2. Plan for the likely (eg eventual severe dementia if you’ve been diagnosed with mild dementia)
  3. Plan for the quite possible (a fall in which you break a hip, eventually developing dementia, etc)

Your father did not plan for this situation. However, as you help him work through the current situation, keep the above planning principles in mind! You’ll almost certainly have more to plan for, especially if he does end up diagnosed with dementia (which means you or someone else will need to make decisions at some point).

Don’t forget to take care of yourself!

As I said at the beginning, this kind of situation is hard to sort through.

It’s messy, and complicated, and stressful, and also tends to bring out whatever family tensions tend to come out when families face problems.

So. If you are worried about an aging father who lives at home alone and might be “incompetent,” you can’t just focus on helping your father. You’ll also have to start equipping yourself to handle what is likely to be a stressful and messy time for the next several months to years. Investing a little time — and possibly a little money — in this will pay off for your father, for you, and for those around you.

The basics of this include making sure you get enough sleep, regular exercise, nutritious food, activities that refresh the soul, and all the other things that are good for humans.

I would also recommend cultivating a mindfulness practice, if you don’t already have one. A variety of free resources are available online, and there are also apps such as Headspace and Calm. The key is to do at least 10 minutes every day. Or for more support, enroll in a mindfulness-based stress reduction course, such as this one.

Last but not least, you’ll need support from friends and family. It’s also usually helpful to get support from others facing similar challenges with aging parents; you can find these in-person and online.  (The most active caregiver forum I’ve found is at AgingCare.com.) You’ll connect with people in similar situations, who will provide helpful suggestions and will completely understand when you need to vent your frustrations.

Read more related articles at:

How We Diagnose Dementia: The Practical Basics to Know

How to Get Guardianship of an Elderly Parent

Also, read one of our previous Blogs at:

How to Plan for Incapacity

Click here to check out our On Demand Video about Estate Planning.


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